property continues to be “used for the com- monweal after being sold to private entities.” Hathcock, id. at 784; see also Poletown, 304 N.W.2d at 479 (Ryan, J., dissenting) (noting such entities as railroads being “ subject to a panoply of regulations”). Rather, Respondents here intend for private developers to pursue their own financial welfare like any other private enterprise. Whatever developments eventually go in this area will be controlled and operated by the private parties. 20 To give but one example, the developer of the office space in Parcel 3 of the Fort Trumbull development plan, not the City or the NLDC, will on its own select the tenants if private offices are eventually built in the area. See Pltfs. Exh. HHH at 27, lns. 1-12 ( “As a developer, we will seek tenants and we will make selections of tenants.”) (testimony of Marty Jones, president of developer Corcoran Jennison) (emphasis added). Unlike private entities such as railroads or utilities, the developer in this case will be able to decide who is serviced by the new office buildings and who is not and will be able to set the rents for the tenants without being subject to a thorough regulatory regime like common carriers face. Accordingly, the development projects here are completely different than the use of eminent domain for such enterprises as railroads, utilities, and other closely-regulated companies. 21 The third category discussed in Hathcock covers instances where the land transferred to a private party is selected on the basis of “facts of independent public significance.” Hathcock, id. at 782-83. The condemnation of blighted property is the most common example that falls into this last category. In blight condemna- tions, the property is selected for condemnation for a public reason - the removal of blight - independent of the use to which the condemned property will eventually be put. The two main public use cases decided by this Court in the past 50 years - Berman v. Parker, 348 U.S. 26 (1954) and Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984) - were also based on “facts of independent public significance.” Ber- man concerned the question of whether the government could condemn property necessary to clear “slums” and subsequently transfer the cleared or improved property to another private party. A slum was defined as “the existence of conditions injurious to the public health, safety, morals and welfare.” Berman, 348 U.S. at 31 (internal quotation omitted). Likewise, other blight cases stress that the existence of blight is a harm, the removal of which serves the public and provides a justification for the taking. 22 See, e. g., Allydon Realty v. Holyoke, 23 N.E.2d 665, 668 (Mass. 1939) (“the analogy between a slum and a public nuisance cannot be overlooked The abatement of a public nuisance may well be a public purpose”); Gohld Realty Co. v. City of Hartford, 104 A.2d 365, 369-70 (Conn. 1954) (“the public use which justifies the exercise of eminent domain in the first instance is the use of the property for purposes other than slums”); Randolph v. Wilmington Housing Authority, 139 A.2d 476, 482 (Del. 1958) (the “elimination of slums” is “the abatement of a public nuisance” and therefore a public use). Thus, the land at issue in Berman was selected to clear slums and remedy urban blight. 23 It is important to note the conditions of the area in Southwest Washington, D.C. at 20 As the court in Hathcock noted: “The public benefit arising from the Pinnacle Project [the project at issue in Hathcock] is an epiphenomenom of the eventual property owners’ collective attempts at profit maximization. No formal mechanisms exist to ensure that the businesses that would occupy what are now defendants’ properties will continue to contribute to the health of the local economy.” Id. at 784. 21 The lack of minimum standards and requirements for the use of the property after condemnation in the instant matter is discussed in greater detail in Part II.D.4 of this brief. 22 See, e.g., Allydon Realty v. Holyoke, 23 N.E.2d 665, 668 (Mass. 1939) (“the analogy between a slum and a public nuisance cannot be overlooked The abatement of a public nuisance may well be a public purpose”); Gohld Realty Co. v. City of Hartford, 104 A.2.d 365, 369-70 (Conn. 1954) (“the public use which justifies the exercise of eminent domain in the first instance is the use of the property for purposes other than slums”); Randolph v. Wilmington Housing Authority, 139 A.2d 476, 482 (Del. 1958) (the “elimination of slums” is “the abatement of a public nuisance” and therefore a public use). 23 It is important to note the conditions of the area in Southwest Washington, D.C. at issue in Berman. This court cited surveys finding that “64.3% of the dwellings were beyond repair 57.8% of the dwellings had outside toilets 83.8% lacked central heating” Berman, 348 U.S. at 30. The district court’s decision reveals even more about the conditions of the area. The death rate for the subject area was 50% higher than in the remainder of the District of Columbia. Schneider v. District of Columbia, 117 F.Supp. 705, 709 (D.D.C. 1953). Moreover, the death rate from tuberculosis was two and a half times greater and the death rate from syphilis infection was more than six times the general rate in the District of Columbia. Id. at 709. Of course, the properties and area at issue in this case display none of those characteristics. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILESTONES IN THE LAW KELO V. CITY OF NEW LONDON 437 U.S. SUPREME COURT, DECEMBER 2004 BRIEF OF THE PETITIONER issue in Berman. This Court cited surveys finding that “64.3% of the dwellings were beyond repair 57.8% of the dwellings had outside toilets 83.8% lacked central heat- ing.” Berman, 348 U.S. at 30. The district court’s decision reveals even more about the conditions of the area. The death rate for the subject area was 50% higher than in the remainder of the District of Columbia. Schneider v. District of Columbia, 117 F.Supp. 705, 709 (D.D.C. 1953). Moreover, the death rate from tuberculosis was two and a half times greater and the death rate from syphilis infection was more than six times the general rate in the District of Columbia. Id. at 709. Of course, the properties and area at issue in this case display none of those characteristics. Once that public use was accomplished and the blight removed, transfer of the cleared land to a private party was acceptable. In the instant matter, Respondents are not operating under Connecticut’surbanrenewallawnorclaiming that the purpose of the condemnations is the removal of blight. The condemnations are therefore decidedly not based upon facts of independent public significance. Likewise, in Midkiff, this Court upheld condemnations based upon Hawaii’s oligopo- listic pattern of landownership stemming from the state’s early monarchical days of feudal land tenure. There, too, the public use was the elimination of the undesirable conditions, not the land’s subsequent use. As noted in Midkiff, the state and federal governments owned almost 49 percent of Hawaii land while 47 percent of the land was in the hands of a mere 72 private landowners. Midkiff, 467 U.S. at 232. The use of eminent domain legislation in Midkiff was specifically targeted to address this oligopoly of land ownership. “Regulating oligopoly and the evils associate d with it is a classic exercise of a State’s police powers.” Id. at 242. 24 In contrast, there is nothing unique or significant about the land at issue in the instant case. It is simply a middle-class, mixed-use neighborhood that just happened to be at the right place (a desirable location) at the wrong time (when the City and private developers wanted it). As noted by the dissent be low, unlike in blight cases and in Midkiff, there is nothing in the act of condemning non-blighted properties that constitutes a public purpose. Pet. App. 141-47. Therefore, no public purpose will be accomplished simply by the taking of the existing properties, unlike the public purposes that are immediately fulfilled in the condemna- tion of blighted areas or the divestiture of oligopolies. Id. Rather, in economic develop- ment condemnations, the only public benefits that might arise, if they ever come about, are completely reliant upon the private transferees of the properties putting it to private use (and their subsequent ability to make profits in an uncertain and competitive real estate market). The use of eminent domain for economic development is therefore not in keeping with the purposes of the condemnations upheld in Berman and Midkiff. In sum, the ordinary benefits that derive from private enterprise cannot constitute a public use under the Fifth Amendment. If all priva te business development is a “public use, ” it wi ll be virtually impossible to distinguish between a public use and a private one. That result would violate this Court’srepeated admon ishments that private takings are pro- hibited by the Constitution. The use of eminent domain for private business develop- ment also conflicts with this Court’sprior jurisprudence that permits the transfer of property from one private owner to another in only limited and specific circumstances. Th is Court should reject private economic devel op- ment as a public use. II. EVEN IF THIS COURT HOLDS THAT EMINENT DOMAIN FOR ECONOMIC DEVELOPMENT IS NOT CATEGORICALLY UNCONSTITUTIONAL, THESE PARTICU- LAR CONDEMNATIONS STILL DO NOT CONSTITUTE A PUBLIC USE. Petitioners endorse a clear, bright-line rule that the trickle-down benefits of successful business do not make private business a public use. See Part I, supra. Nonetheless, if this Court holds that economic development could consti- tute a public use, it still should find that these condemnations do not satisfy the constitutional requirement. Economic development condem- nations are not like other uses of eminent domain. Because the public benefits occur, if ever, long after the condemnation and as a result of third-party activities, there must at least be a reasonable certainty that the condemnations will 24 This Court also noted in Midkiff, 467 U.S. at 241 n.5, that there was an historical tradition in this country of breaking up “feudal incidents” of land ownership following the American Revolution. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 438 KELO V. CITY OF NEW LONDON MILESTONES IN THE LAW U.S. SUPREME COURT, DECEMBER 2004 BRIEF OF THE PETITIONER result in those public benefits. The condemnor must actually have a use for the property, and there must be contractual, statutory, or other minimum standards in place to ensure the likelihood of realization of the public benefits that justified the condemnation in the first place. This type of analysis does not require the courts to decide if a particular project is a good idea, but it does allow them to assess the connection between the goals of the project and the means used to achieve them. In this case, the con- demnors have no reasonably foreseeable use for the property. That fact alone renders the condemnation of Petitioners’ homes not for “public use.” In addition, the condemnations lack minimum standards to ensure realization of public benefit, and the actual use of the property would not result in the purported public benefits. A. “Public Use” Has Independent Signific ance In The Text Of The Fifth Amendment. Constitutional interpretation begins with the text, and this case concerns the meaning of “public use” in the Takings Clause - “Nor shall private property be taken for public use without just compensation.” U.S. Const., Amend. V. 25 This Court presumes that every term in the Constitution has meaning and that nothing is superfluous. See, e.g., Wright v. United States, 302 U.S. 583, 588 (1938). As this Court has recognized in another context, the very act of enumeration of a particular power “presupposes something not enumerated.” United States v. Lopez, 514 U.S. 549, 552 (1995) (quoting Federalist No. 45). In the case of eminent domain, government is per mitted to take property only for the enumerated purpose of “public use.” Using the term “public use” presupposes the existence of something else - a private use; otherwise, “public use ” would have no content at all. Accordingly, this Court consistently has held that the Takings Clause prohibits eminent domain for private use. See e.g., footnote 6, supra. To state the obvious, in the Takings Clause, “public use” is contrasted with “private prop- erty.” Public use therefore meant something other than ordinary private property, used in an ordinary private manner. Living on one’s property or operating an ordinary business upon it were accepted and commonplace private uses of private property, just as they are now. See generally, 1 William Blackstone, Commentaries on the Laws of England 134 (Stanley Katz, intro., 1979) (1765) (right to free use and enjoyment of property). See Brief Amicus Curiae of the Claremont Institute. They were not, however, public uses. Moreover, the use of the word “public” in other portions of the Constitution confirms that its meaning was either govern- mental 26 or the public at large. 27 Similarly, other instances of the word “use” confirm that the Framers used it to mean employment or utilization, not incidental benefit. 28 The judicial interpretation of “public use” has, of course, expanded in the years since the Constitution was ratified, most notably to encompass the removal of slums and blight. See Berman, supra. But it is still an independent clause that retains an independent meaning. As the use of eminent domain moves further and further from the text, however, courts should take greater care to ensure that the exceptions are not allowed to swallow the rule. B. Eminent Domain For Economic Development Should Not Receive The Same Deference As More Conventional Uses Of The Power. The Connecticut court specifically rejected any kind of heightened scrutiny and declined to adopt even Poletown’s modest limitations on eminent domain for economic development. See Pet. App. 45 n.39, 73 n.62; compare Poletown Neighborhood Council v. City of Detroit, 304 N.W.2d 455, 459-60 (Mich. 1981) (public benefits in economic development condemna- tions must be “clear and significant”). Even if this Court finds that economic development as a 25 The “public use” requirement applies to the states through the Fourteenth Amendment. See Chicago B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897). 26 Art. I., § 9, cl. 7 (expenditures of “public” money); Art. II, §2,cl.2(“public” ministers and consuls); Art. II, § 3, cl. 1 (“public” ministers); Art. III, § 2, cl. 1 & 2 (same); Art. IV, § 1, cl. 1 (recognition given to “public” Acts); Art. VI, cl. 3 (office of “public” trust). 27 See Art. I, § 9, cl. 2a (protection of “public” safety against invasion); Art. V, § 1, cl. 1 (time of war or “public” danger); Art. VI, cl. 1 (right to a speedy and “public” trial). 28 See Art. I, § 8, cl. 12 (appropriation of money to “use” of raising and supporting armies); Art. I, § 10, cl. 2 (money for “use” of the treasury); see also Bailey v. United States, 516 U.S. 137, 144-46 (1995) (“use” means active employment). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILESTONES IN THE LAW KELO V. CITY OF NEW LONDON 439 U.S. SUPREME COURT, DECEMBER 2004 BRIEF OF THE PETITIONER general matter can be a public use, there is no doubt that economic development condemna- tion projects are much more “private” than those for privately owned transportation or utilities. Economic development condemnations are intimately tied to private interest, private benefit, and private economic success. Because such condemnations have unique risks, those risks must be countered by a stronger connec- tion between the use of em inent domain and the benefits sought to be achieved. See also Brief of Amici Curiae Professor David Callies, et al. at 21-27. In fact, this Court has in the past suggested the need for more careful scrutiny of con- demnations for private ownership than those for public ownership. “[T]he presumption that the intended use for which the corporation proposes to take the land is public is not so strong as where the government intends to take the land itself.” United States v. Gettysburg Electric Railway Co., 160 U.S. 668, 680 (1896); cf. Pet. App. 137 (dissent) (“as the category of public use changes from one of direct public use to indirect public benefit in the form of private economic development, the level of judicial inquiry must increase in order to protect the legitimate interests of the condem- nee”). Indeed, the standard that the Court has actually applied in case s where property has been taken for private ownership has generally been more searching and less deferential in examining the connection to the stated public use and the degree of necessity for the condemnation. 29 In prior cases of eminent domain for private ownership, at least this Court was certain of the intended use of the property and its connection to the public interest. In contrast, in many economic development con- demnations, and in these condemnations in particular, there is far less certainty about the use of the condemned property. With that uncertainty comes a far greater risk that property will be taken for private use or for no use at all. C. Economic Development Condemnations Carry Greater Constitutional Ris k. All eminent domain actions have the potential to expose condemnees to significant and uncompensable losses. In most condem- nations, however, the public benefit is both certain and obvious - public works, public utilities, and infrastructure are all acknowl- edged and unremarkable uses of eminent domain. Condemnations to eliminate slum and blight have the immediate effect of removing an area causing public harm. The public benefit from economic development projects, however, is far less certain. There are at least two major distinctions between economic development condemnations and more traditional uses of eminent domain: first, economic development condemnations often lack “an immediate or reasonably foreseeable public benefit” and second, any public benefit from economic development condemnations flows from the actions of a third party, rather than the condemnor. Pet. App. 142. 1. Eminent domain forces some people to bear a burden that should be, but cannot be, borne by all. One of the core principles of the Takings Clause is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960). Eminent domain, however, imposes unique, sometimes devastating, burdens on condemnees. Some of these burdens simply cannot be “shared” by the act of compensation. The pain of losing one’s cherished home, the separation from family members and com- munity, and other intangible but profound personal losses are not and cannot be shared or 29 See, e.g., Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55 (1937) (taking of natural gas production did not substantially promote stated goal of limiting waste of natural gas); Brown v. United States, 263 U.S. 78, 84, 81 (1923) (dam would flood town so “removal of the town is a necessary step in the public improvement itself” and land chosen for relocation was “only practical and available place”); Clark v. Nash, 198 U.S. 361 (1905) (taking of drainage easement for private party absolutely necessary); Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 166-67 (1896) (individual could not be compelled to participate in irrigation scheme unless benefit to individual was “substantial”); cf. Union Lime Co. v. Chicago & N.R. Co., 233 U.S. 211, 221-22 (1914) (railroad spur would be open to the public and land for spur was “practically indispensable” to operation of lime company); Hairston v. Danville & Western Railway Co., 208 U.S. 598, 608 (1908) (spur track would be open to the public); Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527, 531-32 (1906) (tramway carrying ore for all who seek to use it and necessary to transport ore down from mountain). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 440 KELO V. CITY OF NEW LONDON MILESTONES IN THE LAW U.S. SUPREME COURT, DECEMBER 2004 BRIEF OF THE PETITIONER compensated. 30 Indeed, the personal value of property ownership was a vital part of our nation’s founding. A few courts, like New Hampshire, explicitly balance such “social loss” against public benefit. See Merrill v. City of Manchester, 499 A.2d 216, 217-19 (N.H. 1985). While this Court has never specifically looked at “social loss” as part of public use analysis, it is interesting to note that very few of the condemnations for private parties considered by this Court have involved the destruction of viable businesses, and none has approved the destruction of viable homes for private ownership. 31 If Petitioners lose their homes, they will suffer just these types of personal and uncom- pensable losses. For example, there is no way to “justly” compensate Petitioner Wilhelmina Dery, a woman in her late 80s and in poor health, for being forced out of the only home she has ever known. Forced displacements can have serious health consequences for elderly condemnees, and those consequences cannot be shared. See Brief of Amicus Curiae NAACP, AARP, et al. at 14-15. Nor is compensation possible for her son, Matt Dery, who will have to move his parents from their home a few steps away and watch them spend the last years of their lives uprooted and unhappy. In light of these significant and often uncompensable losses it becomes even more important that the condemnation really will yield the benefits that justified the taking in the first place. See Pet. App. 163 (citing dissent “tremendous social cost” as important reason for requiring higher level of proof that con- demnation will result in its intended benefits). Economic development condemnations have a much greater risk that the benefits that were used to justify the condemnation will never materialize. 2. The public benefits of economic development condemnations are far less certain than the vast majority of other condemnations. There are at least two significant differences between many economic development condem- nations and other, more conventional uses of eminent domain. First, economic development condemnations often lack an “immediate or reasonably foreseeable” achieve ment of the pur- poses justifying the condemnation. Pet. App. 141-142. Second, in economic development condemnations, public benefits, if they occur at all, depend on the actions of third parties rather than the condemnor. Id. Economic development projects are uncertain ventures that often do not live up to their original promises. 32 But if the benefits of economic prosperity never materialize, condemnees have suffered s ignificant personal losses for no benefit at all. The con- demnations at issue in this case vividly demon- strate those risks. There is no immediate or reasonably foreseeable use of any kind for the land where Petitioners’ homes now sit. The City will not own the property or participate in any develop- ment contracts relating to the property. And the realization of the public benefit of economic development will occur only if private parties are able to generate successful development. The Connecticut dissent described the majority’s public use standard as a “Field of Dreams” - “if you build it, they will come” - approach. Pet. App. 189. Though the dissent’s characterization is illuminating, the majority’s standard is perhaps better described in this instance as “if you raze it, they will come.” 30 See, e.g., Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings,88 Colum L. Rev. 1667, 1689-91 (1988) (making the case for limitations on the eminent domain power because of the connection between “personal property” and individuals’ sense of personhood and community); Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1210-11 (1967) (owners suffer significant demoraliza- tion costs when their property is taken by government); see also Lynch v. Household Finance Corp., 405 U.S. 538, 552 (1972) (“Property does not have rights. People have rights.”). Brief of Amicus Curiae of Better Government Association, et al. at 9-12, 16-18 (loss of community); Brief of Amici Curiae Mary Bugryn Dudko, et al. at 8-17 (havoc on family and society). 31 See, e.g., Clark v. Nash, 198 U.S. 361 (1905) (noting that condemnation for widened ditch would have no negative effect on condemnee); Brown v. United States, 263 U.S. 78 (1923) (land); Union Lime Co. v. Chicago & N.R. Co., 233 U.S. 211, 221-22 (1914) (easement over land); Hairston v. Danville & Western Railway Co., 208 U.S. 598, 608 (1908) (same); Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527, 531-32 (1906) (same); Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112 (1905) (same). Berman v. Parker, 348 U.S. 26, 31 (1954) and Otis Co. v. Ludlow Manufacturing Co., 201 U.S. 140, 150-51 (1906) (one mill rendered another unusable) appear to be two of the few cases to come before this Court that involved the destruction of viable businesses for ultimately private ownership. 32 See, e.g., Brief Amici Curiae of the American Farm Bureau, et al., at 16-24; Brief Amicus Curiae of John Norquist at Part I. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILESTONES IN THE LAW KELO V. CITY OF NEW LONDON 441 U.S. SUPREME COURT, DECEMBER 2004 BRIEF OF THE PETITIONER There was no planned use for the homes on Parcel 4A, and the chosen developer did not plan to build on Parcel 3 in the reasonably foreseeable future, if ever. According to the majority, however, the Constitution was satis- fied if the Respondents believed in good faith in a strategy of clearing the land, hoping a market would develop once it was cleared, and hoping that the subsequent new construction would bring taxes and jobs. Petitioners, howev er, will lose their homes now. Then, much later, they will learn if they lost their homes for public use or for a high-stakes crapshoo t on the possibility of a “public use” that never materialized. Those risks are unusual in eminent domain actions. Conventional condemnations almost always have a reasonably foreseeable use. Although projects to rehabilitate slum or blighted neighborhoods may take time, the elimination of blight occurs almost immediately - with demolition - and such projects are subject to stricter statutory controls than economic develop- ment condemnations. See Pet. App. 134-190. Thus, in the cases considered by this Court in the past, the public benefits have been almost immediate and effectuated by the condemnor, not third parties. 33 D. A Reasonab le Certainty Test Counter- balances The Unique Risks Of Economic Development Co ndemnations. The condemnation of property for eco- nomic developme nt projects should only occur if and when the government can show that there is reasonable certainty that the project will proceed and yield the public benefits that are used to justify the condemnation. This level of certainty would bring economic development condemnations on par with more traditional condemnations, in which the public benefit is both more recognizable and more immediate. The Connecticut dissent is by no means the first opinion or court to be concerned about the lack of immediate or reasonably foreseeable benefit in condemnations. Nor is it the first to object to a condemnation where the condemnor has no control over the future achievement of the goals of condemnation. There are few federal cases on this issue, but this Court can also look to standards developed in state caselaw. See, e.g., Dolan v. City of Tigard, 512 U.S. 374, 389-91 (1994) (reviewing different state standards and selecting). There is a substantial body of state caselaw holding that property cannot be con- demned when the use is unknown or will occur at an unknown time and that it cannot be condemned if there are insufficient binding standards or assurances that it will be used to achieve the purpose or benefit for which it is being condemned. These cases form a rough consensus that is an appropriate test for economic development condemnations in par- ticular: There must be a planned, reasonably foreseeable use and sufficient contractual, statu- tory, or other minimum standards in place to make the realization of the promised economic benefits from the condemnation reasonably certain. While Petitioners do not think it is a necessary part of a reasonable certainty test, the Connecticut dissent also suggests a useful and slightly different analysis of whether the actual planned uses of the property will result in the purported public benefits. A reasonable certainty test counters the unique risks of condemnation for economic development. If the benefits are not immediate, at least the use should be reasonably foreseeable. If the public benefit will arise from the actions of third parties, at least there are binding contrac- tual or statutory standards to ensure the realization of the goals of the condemnation. A reasonable certainty test does not require courts to decide if a particular project is a good idea. Instead, it asks courts to look at plans and timelines to see if there is a reasonably foresee- able use of the property and to look at standards and restrictions in contracts, statut es, and other documents to see if they assure a substantial likelihood of the purported public benefits. While absolute certainty will never be possible, reasonable certainty at least ensures that there is a strong likelihood that the prognosticated public benefits will actually occur. Without that reasonable certainty, people’s homes and busi- nesses can and will be taken with no public use and no public benefit. 1. In economic development condemnations, a public use should be a known use. The Constitution requires that property be taken only for public use. If the use is unknown, 33 See, e.g., Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984) (act of transfer immediately achieves goal of greater diversity of ownership); Berman v. Parker, 348 U.S. 26 (1954) (removal of area of slum, high crime, disease, and infant mortality); United States v. Carmack, 329 U.S. 230 (1948) (post office). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 442 KELO V. CITY OF NEW LONDON MILESTONES IN THE LAW U.S. SUPREME COURT, DECEMBER 2004 BRIEF OF THE PETITIONER it is impossible to evaluate if it is being condemned for public use or not. It is therefore not surprising that courts have expressed grave discomfort with takings that lack a stated use or where there is no immediate or reasonably foreseeable use for the property. In Cincinnati v. Vester, 281 U.S. 439, 448 (1930), this Court refused to uphold a condem- nation without knowing what the City would actually do with the property. The Court construed an excess condemnation statute to require a statement of the purpose of the condemnation, because construing the statute to permit condemnation for an “independent and undisclosed public use” would raise consti- tutional problems. Id. at 448. The original project was for the widening of a street, but the City sought to condemn additional property, possibly to recoup the costs of street construc- tion, possibly to promote “harmonious develop- ment” along the street. This Court explained that the use could not be “to be determined only by such future action as the City may hereafter decide upon” and that “[i]t is not enough that property may be devoted hereafter to a public use for which there could have been an appropriate condemnation.” Id.; see also Brown v. United States, 263 U.S. 78, 83-84 (1923) (upholding condemnation and explaining that land was being condemned for actual use of relocating town and not for “speculation”). State courts also have expressed concern about “speculative” condemnations, often treat- ing the issue as a problem of lack of necessity, in a temporal sense, or a hybrid of public use and necessity. 34 In other words, if there is no immediate or reasonably foreseeable need for the property, the condemnation is premature. Notably, the state cases requiring an immediate or reasonably foreseeable use for condemned property almost all address takings for conven- tional, uncontroversial public uses. Here, where the property is being taken for unspecified economic development uses, the potential for abuse and the need for reasonable foreseeability are much greater. This Court ’s decision in Cincinnati v. Vester , as well as the various state court cases, suggest a workable standard: When property is being condemned for economic development, there must be a planned use for the property that will be implemented in the immediate or reasonably foreseeable future. 2. The condemnations of Petitioners’ homes lack immediate or reasonably foreseeable uses. In this case, Respondents seek to take Petitioners’ homes for (1) an office building that the developer has no plans to build and (2) some other, unknown use. Not only is there no reasonable certainty of pu blic benefit, there is reasonable certainty that those benefits will not occur. These condemnations blatantly violate the principle that property should not be taken without a reasonably foreseeable use, and the Court can reject them solely on that narrow basis. The homes lie in two nearby areas of the development plan. Four of the homes, those in “Parcel 3,” are being taken for an office building that the developer admits that it does not plan to build in the foreseeable future, if ever. J.A. 47 (office development “uncertain”); J.A. 64 (“not feasible at this time”). Indeed, the developer’s 34 See, e.g., City of Phoenix v. McCullough, 536 P.2d 230, 232-37 (Ariz. App. 1975) (“if the condemning body is uncertain when futur e use shall occur, the future use becomes unreasonable, speculative, and remote as a matter of law and defeats the taking”); San Diego Gas & Electric Co.v.LuxLandCo.,14 Cal. Rptr. 899 , 904 (Cal. App. 4 Dist. 1961) (taking of easement for telephone, gas, a nd electrical use is speculative where utility has no present intention to install transmission lines); Silver Dollar Metro. Dist. v. Goltra, 66 P.3d 170 (Colo. App. 2002) (condem- nation premature when no reasonable likelihood proje ct will proceed); State v. 0.62033 Acres of Land, 112 A.2d 857, 860 (Del. 1975) (taking of land for highway without plan and that may be needed “some time in the future” not sufficiently in the reasonably foreseeable future to necessitate taking); Meyer v. Northern Indiana Public Service Co., 258 N.E.2d 57, 58-59 (Ind. 1970) (taking of rig ht of way for “sometime in the future, maybe as much as six or ten years,” considered a “purely speculative futur e need.”), superceded on unrelated grounds, 287 N.E.2d 882 (Ind. 1972); People ex Rel. Director of Finance v. YWCA, 427 N.E.2d 70 (Ill. 1981) (finding condemnation unnec- essary where contracts for construc tion and use of building not in place); Regents of Univ. of Minnesota v. Chicago and North Western Transp. Co., 552 N.W.2d 578 (Minn. App. 1996) (where there were three potential us es for land but they were mutually exclusive and none had been approved and soil contamination precluded current development, taking not necessary); City of H elena v. DeWolf, 508 P.2d 122, 128 ( Mont. 1973) (where parking wou l d be needed only if other parts of the projec t succeeded, government could not seek property now “to await money, motivation, and the hopes of the planners”); see also Pi edmont Triad Regional Water Auth. v. Sumner Hills, Inc., 543 S.E.2d 844, 847-48 (N.C. 2001) (construing statute to avoid constitutional problem and holding that condemnor could not take property in excess of that needed for stated public use). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILESTONES IN THE LAW KELO V. CITY OF NEW LONDON 443 U.S. SUPREME COURT, DECEMBER 2004 BRIEF OF THE PETITIONER study described the construction of the building as “speculative.” J.A. 64. If and when the developer began the project, it planned to develop other offices first and did not plan on constructing office space on Parcel 3 in the foreseeable future. J.A. 64 (existing office building will be developed first; other office space “not feasible”). The developer planned to build the office building that would occupy the land of the former homes dead last, if it built it at all. J.A. 33-34; 46-48, 73 (development descriptions and timeline). The developer would not put in office space on Parcel 3 without known tenants. There were, however, no contrac ts with future tenants and indeed little interest from potential tenants of any office space. Pet. App. 180-81 (dissent); see also Pet. App. 330 (trial court opinion). The other eleven homes are in an area known as “Parce l 4A,” which is labeled “Park Support” in the development plan and appears as a blank space on the current site plan. See Pet. App. 6; J.A. 5. No witness knew what “Park Support” meant and all witnesses admitted it could be a wide range of possible uses. See Pet. App. 125 (majority opinion); 348 (trial court opinion); see also footnote 4, supra. Thus, at the time of the condemnation, there was no identified use for the area and certainly no “immediate” or “reasonably foreseeable” use of any kind. The Connecticut Supreme Court was un- fazed by the speculativeness of these condemna- tions. Regarding Parcel 3, it thought that a 1999 study stating that there was a “potential” demand by 2010 for an additional 8,400 to 245,100 square feet of office space somewhere in the Fort Trumbull area made the use foreseeable enough. To translate, a 1999 study said that there was “potential” demand in 11 years for as much as one additional office building or as little as one medium-sized office. By 2001, and before the condemnations took place, the chosen developer had concluded that construction of offices on Parcel 3 - the specific location of four of Petitioners’ homes - would be “speculative,” that the developer would try to develop other office space not on Parcel 3, and that it would reconsider Parcel 3 only if the market changed sometime in the future. Pet. App. 102-103; J.A. 47, 64. The majority’s additional reasoning is even more disturbing. The majority took comfort in the fact that once Pfizer opened, more demand for office space might develop. “[A]t the time of trial, the Pfizer facility had just opened; it therefore did not have the opportunity to create deman d.” Pet. App. 107-08. In other words, there was no reasonable foreseeable use for the property when Respondents condemned it, but perhaps some use might develop after the condemna- tions were complete. This analysis is exactly backwards and makes the condemna tions, at best, premature. Petitioners’ response is simple: There must be a reasonably foreseeable use for the property at the time that co ndemnation is sought, not a hope that a use will become reasonably forseeable at some unknown point in the future. Regarding Parcel 4A, the majority pointed out that although no witness could define Park Support, the witnesses were able to name some possible uses that “Park Support ” could include. Pet. App. 346. Indeed, the witnesses were able to hypothesizesome possible, mutually incompatible uses for Parcel 4A. Perhaps Respondents would settle on one of these or come up with something else to do with the property once it was condemned, and perhaps not. But saying that property could perhaps be used as parking, retail, a museum, warehouses, storage, or something else does nothing to establish that any particular use of the property is reasonably foreseeable. Indeed, the complete lack of any planned use for the 11 homes on Parcel 4A was what led the trial court to hold that those takings were improper. According to the trial court, it was impossible to say that a use was public without knowing what the use would be, and it was similarly impossible to find that the condemnation of the property was necessary for the unknown use. Pet. App. 348-350. These condemnations are utterly speculative and for this reason alone, they must be declared unconstitutional. 3. Economic development condemnations should require minimum standards and controls over future use and benefit. Courts also have been uncomfortable with condemnations transferring property to private parties without significant assurances of future use or benefit. This Court does not appear to have considered a case such as this one, where the future use of condemned property was unknown and would be determined by third parties. Most of the condemnations considered by this Court were for very specific purposes. See, e.g., footnotes 15, 18, 29, supra. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 444 KELO V. CITY OF NEW LONDON MILESTONES IN THE LAW U.S. SUPREME COURT, DECEMBER 2004 BRIEF OF THE PETITIONER Examination of constraints upon future use of condemned property is not unusual. This examination typically takes the form of examin- ing the development agreement to see if there are contractual obligations ensuring that the intended public benefits actually occur, rather than vague and general promises. 35 The Connecticut dissent also notes many types of minimum standards or requirements that could be relevant in evaluating reasonable certainty (Pet. App. 183, 188 n.28) and notes that statutory constraints would also be important to ensure the realization of the purported public benefits especially when a public body is not carrying out the project. Pet. App. 143-45. Again, the state caselaw suggests a workable judicial approach: There must be binding contractual, statutory, or other minimum standards or requirements in place that ensure the private party uses the property in the manner approved by the condemnor and that make the realization of the tax revenue and job benefits reasonably certain. 4. These cond emnations lack binding contractual or statutory minimum standards to make realization of the public benefit reasonably certain. Although the lack of a reasonably forese e- able use for the property alone renders these condemnations unconstitutional, they also lack minimum standards and mechanisms for en- suring the public benefits that were used to justify the takings in the first place. At the time of the condemnation, there was no develop- ment agreement for Parcel 3, although negotia- tions with the developer indicated it would receive the property on a lease for $1 per year for 99 years. 36 Pet. App. 177-79. As there was no contract, there also was no contractual timeline or other requirement to ensure the develop- ment of Petitioners’ land or any public benefits that are supposed to flow from that develop- ment. Pet. App. 183-84. For the homes in Parcel 4A, there was no planned use at all and thus no means of ensuring the planned use would lead to economic development. There are no statutory assurances or requirements for the course of an economic development plan. Pet. App. 174 n.21. In fact, the statutes allow the abandonment of the plan after a minimum of three years. Pet. App. 142. If it is not abandoned, the plan, under its own terms, will stay in effect for as long as 30 years. During those three to 30 years, the achievement of tax or job growth - the public use for which Petitioners may lose their homes - is completely out of the City’s hands. The achievement of economic growth, should it occur, will be wholly contingent on the economic success of private businesses. If they do well, the City may see the “trickle-down” benefits of additional tax revenue and jobs. See SWIDA, 768 N.E.2d at 10- 11. If they do not, Petitioners’ homes will be long gone. The Connecticut majority pointed to two factors in ruling against Petitioners: first, that the development plan stated that future con- tracts with developers should include a com- mitment that property would be developed pursuant to the development plan and that a state agency would have some continuing involvement in the development. Pet. App. 74-76. The difficulty, however, is that none of that creates any assurance that Petitioners’ land will be developed at all, much less that it will produce economic development. As the dissent explained, “[s]uch minimum standards might 35 See, e.g., United States v. Agee, 322 F.2d 139, 143 (6th Cir. 1963) (condemnation had sufficient assurances because title to property retained by Tennessee Valley Authority and lease with Girl Scouts permitted termination at will of TVA and flooding by the TVA); County of San Francisco v. Ross, 279 P.2d 529, 532 (Cal. 1955) (In Bank) (holding that agreement lacked controls over the use of the property and “[s]uch controls are designed to assure that use of the property condemned will be in the public interest”); Mayor of the City of Vicksburg v. Thomas, 645 So.2d 940, 943 (Miss. 1994) (holding that property may only be con- demned for transfer to “private parties subject to condi- tions to insure that the proposed public use will continue to be served”); Casino Reinvestment Dev. Auth. v. Banin, 727 A.2d 102, 108-11 (N.J. Super. Ct. 1998) (noting importance of having “restrictions in the agreement between the public agency and the private developer” and finding contract lacked sufficient binding obligations); City of Virginia Beach v. Christopoulos Family, 54 Va. Cir. 95, 108 (Va. Cir. 2000) (contract gave developer complete control over future use of property); see also Condemnation of 110 Washington Street, 767 A.2d 1154, 1160 (Pa. Commw. 2001), app. denied, 767 A.2d 379 (2001) (contract gave private party authority to decide whether or not to condemn each piece of property); cf. Hathcock, 684 N.W.2d at 784 (noting importance of existing “mechanisms” that “ensure” future public use). 36 There will be no financial benefit to the City from the lease, and the dissent notes that since the terms of the contract (other than the $1 lease price) were unknown, it is possible that tax revenues would not increase even if the businesses did succeed. Pet. App. 182-184. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILESTONES IN THE LAW KELO V. CITY OF NEW LONDON 445 U.S. SUPREME COURT, DECEMBER 2004 BRIEF OF THE PETITIONER include a commencement date for the project, a construction schedule, a guaranteed number of jobs to be created, selection criteria for potential developers, financing requirements, the nature and timing of land disposition and a commit- ment as to the amount received in property taxes as a percentage of assessed value.” Pet. App. 188 n.28. Instead, there is “no develop- ment agreement, no firm timetable for project implementation, no indication as to whether future developers will be offered tax abatements or other incentives , and no indication of possible penalties if developers do not perform as required.” Pet. App. 183. Accordingly, there are insufficient contractual or statutory mini- mum standards to ensure a reasonable certainty of public benefit. The lack of such standards leads to yet a further danger - that of undue private benefit or purpose. When all of the crucial determinations that will give rise to public benefit or private advantage can be made after the conde mnations take place, then the possibilities for abuse multiply exponentially. Many condemnation projects have significant benefits for private parties. A rule allowing condemnation in advance positively encourages speculation, be- cause the easiest way to withstand a public use challenge will be to say that there is insufficient evidence (yet) of undue private benefit. Once the condemnation has taken place, the con- demnee will have no legal recourse. Minimum standards are essential to ensure that such abuses do not occur. 5. The Kelo dissent’s test of examining if the actual use of the property will produce public benefit could also be a factor in determining public use in economic development co ndemnations. The dissent also used a reasonable certainty standard but had an additional and slightly different focus, asking whether the actual, currently planned use of the property was reasonably certain to bring the prophesied economic development. 37 In other words, the dissent asked if, at the time of the taking, there was a reasonable certain ty that if the stated improvements were constructed as planned, they would indeed promote economic develop- ment. This approach is one that also has been suggested by this Court and used by some other courts. See, e.g., Thompson v. Consol. Gas Utilities Corp., 300 U.S. 55, 78 (1937) (finding actual “necessary operation and effect” of natural gas regulation to transfer benefits from one person to another); Brown v. United States, 263 U.S. 78, 83-84 (1923) (explaining that land was being condemned for actual use of relocating town and not for speculative pur- poses). 38 Petitioners believe this could be another factor for courts to look at in evaluating economic development condemna- tions. The condemnations of Petitioners’ homes would fail such a standard. As explained by the dissent, an office building with no market and an area for which there are no plans do not have a reasonable certainty of producing economic development. Pet. App. 177-86. This test responds to the majority’s holding that a mere claim that a project will lead to econom ic development constitutes a sufficient connection between the condemnation and econom ic development. The dissent suggested, in effect, that “public use” means more than a wish list of benefits that the City hopes, after condemna- tion, someone else will bring about. Petitioners believe, however, that these condemnations may be rejected by looking at whether the use is reasonably foreseeable and binding minimum standards for ensuring public benefit are in place, without needing to project the actual use and whether public benefits would result from that use. 37 The dissent below proposed a four-step test in which the court evaluates: (1) whether the statutory scheme is facially constitutional; (2) whether “the primary intent of the particular economic development plan is to benefit public [] interests;” (3) whether “the specific economic development contemplated by the plan will, in fact, result in public benefit;” and (4) whether the condemnation is reasonably necessary to implement the plan. Pet. App. 159-70. The third step is the one that differs significantly from the majority opinion, and thus it is the one Petitioners discuss in this brief. 38 See also Patel v. Southern California Water Co., 119 Cal. Rptr. 2d 119 (Cal. App. 2002) (land condemned by water company would actually be used for cell phone tower); Georgia Dept. of Transportation v. Jasper County, 586 S.E.2d 853, 857 (S.C. 2003) (noting that actual use would be “gated facility with no general right of public access”). Many of the cases examining whether the public use is “primary” or “incidental” also look to the actual use in making that determination. See, e.g., Baycol, Inc. v. Downtown Dev. Auth., 315 So.2d 451, 456-58 (Fla. 1975) (examining planned use to determine if private benefits were primary or incidental and discussing other cases also looking at actual use); City of Bozeman v. Vaniman, 898 P.2d 1208, 1214 (Mont. 1995) (examining planned actual use of property to determine primary benefit). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 446 KELO V. CITY OF NEW LONDON MILESTONES IN THE LAW U.S. SUPREME COURT, DECEMBER 2004 BRIEF OF THE PETITIONER . country of breaking up “feudal incidents” of land ownership following the American Revolution. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 438 KELO V. CITY OF NEW LONDON MILESTONES IN THE LAW U.S District of Columbia. Id. at 709. Of course, the properties and area at issue in this case display none of those characteristics. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILESTONES IN THE LAW. U.S. 230 (1948) (post office). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 442 KELO V. CITY OF NEW LONDON MILESTONES IN THE LAW U.S. SUPREME COURT, DECEMBER 2004 BRIEF OF THE PETITIONER it